Louisville Tobacco Warehouse Co. v. Louisville Water Co.

• Decision Date: 02 February 1915
• Parties: LOUISVILLE TOBACCO WAREHOUSE CO. v. LOUISVILLE WATER CO.
• Court: Kentucky Court of Appeals

172 S.W. 928

162 Ky. 478

LOUISVILLE TOBACCO WAREHOUSE CO. v. LOUISVILLE WATER CO.

Court of Appeals of Kentucky.

February 2, 1915

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by the Louisville Tobacco Warehouse Company against the Louisville Water Company. Judgment for the plaintiff for $177.47, and defendant appeals. Affirmed.

Humphrey Middleton & Humphrey, of Louisville, for appellant.

A. J Carroll, of Louisville, for appellee.

NUNN J.

This case started in the quarterly court of Jefferson county. The water company filed a petition in that court seeking to recover from the warehouse company the sum of $177.47 claiming that it had furnished the warehouse company the quantity of water which, according to its rates, was of the value mentioned. The warehouse company filed an answer and counterclaim denying that the quantity of water mentioned in the petition had been furnished, and setting up affirmatively that the bills for the period in controversy were unusually large and exorbitant; that it had offered to pay the amount of an average bill; that the water company had refused to accept this amount and had wrongfully and illegally shut off the water from the warehouse company's hydraulic elevator; that by reason of this it was unable to operate its elevator; and that its business was damaged to the extent of $1,000. On motion the case was transferred to the Jefferson circuit court, and in due time a reply was filed traversing all the allegations of the answer and counterclaim. With the issues thus joined, the case was tried and submitted to a jury, and their finding was in favor of the water company for the amount claimed in the petition.

On this appeal, the warehouse company asks a reversal upon the following grounds:

"(1) That the court erred in refusing to allow the warehouse company to introduce in evidence its monthly water bills for six or seven months directly preceding the period in dispute. (2) That the court erred in refusing to instruct the jury that if a bona fide dispute, based upon reasonable grounds, existed between the water company and the warehouse company as to the correctness of the bills rendered, the water company had no right to shut off the water from the warehouse company during this dispute."

The following are the facts out of which the controversy arose: The warehouse company used a hydraulic elevator in its tobacco house. The water by which the elevator was operated was furnished by the water company through a special meter; that is, a different meter from the one used to register consumption of water elsewhere about the plant. The tobacco house was several stories high, and the business was handling and storing tobacco on the various floors, so that it was very necessary to keep an elevator in service to move the hogsheads up and down as the occasion might require. The meter in use up to the time this trouble began was installed about 25 years prior thereto. The evidence for the water company shows that the meter was old and worn out, and was not registering correctly. This fact was revealed by the water company's inspector, and thereupon, in July, 1912, it was taken out and a new one put in its place. The evidence of the water company as to the inefficiency of the old meter is not controverted. For the six months preceding this change, the elevator water bills had ranged in amount from $3 to $14 per month, or an average of about $8. These facts are shown by avowals made by the warehouse company in an attempt to introduce as evidence receipted water bills for these months.

The bill for the first month after the new meter was installed, July 19th, to August 19th, was $128.28, and it showed a water consumption of 1,063,656 gallons. For the next month, the bill rendered was for $49.19 on a consumption of 342,548 gallons. These bills were so extraordinarily large that the warehouse company refused to pay them. They are the ones embraced in the petition filed in the quarterly court. The bill for the third month was down to "normal," to use a term of the warehouse company; that is, for 39 days there was a charge of $11.52, on a consumption of 102,476 gallons. The warehouse company refused to pay the two large bills because it claimed they were excessive and erroneous. The last bill, $11.50, was settled some time before the suit was filed. Upon refusal to pay the two bills in question, and after notice, water service was cut off from the elevator by the water company. This was pursuant to one of its rules.

When the water company's inspector read the new meter at the end of its first month's service, it was noted that the registered consumption was unusually large. Four days later another inspector was sent to re-read the meter and verify the first report. He ascertained, as he testified, that the first reading was correct, and that in addition 17,600 gallons had been consumed in the four days between the two readings. The water company then, pursuant to a custom, sent written notice to the warehouse company that the amount of water shown to have been delivered through the meter was so large as to indicate a leak at some place in the warehouse service pipes or in the elevator. On August 19th, the bill for $128.28 was rendered. This, together with the warning of the leak, caused the warehouse company on August 28th "to have its plumbing and hydraulic elevator examined so that any needed repairs could be made." The testimony of the plumber shows that the pipes leading from the meter to the elevator were in good condition and free of leaks. As to the elevator, they say there was some seepage, but it was of no consequence. We understand from the record that the seepage referred to by the plumbers is such as is found with all hydraulic elevators, and it does not serve to account for any material part of the water registered. But it is also shown from the testimony of the plumbers that they repaired two water valves in the elevator chamber; that is, the leather cups in the inlet and outlet valves had been in service long enough (8 or 10 months) to need new ones in their place, and new ones were put in. They say that there was no leak around these old leather cups, and that they put in the new ones merely because it was getting time to renew them, and it was then convenient to do so. But their testimony as to the improbability of a leak at these valves is weakened when they show the improbability of a leak being discovered by them. In making the repairs to the valves the water was necessarily cut off from the elevator. There being no water or pressure, no leaks would be apparent. In this, the second month, the elevator was operated for 10 days with the old valves, and 21 days with the new ones, and we find the water consumption recedes from $128.28 to $49.19. During the next month the expense of service with the new valves was back to $11, or "normal."

The warehouse company maintains that there was no leak in their service pipes or valves. It is contended that the trouble was in the new meter; that it was improperly adjusted when it was installed, and for this reason the excessive amounts were registered during the first two months. "Normal" registration in the third month is accounted for by argument that the new meter in course of time just settled down to good work, or was properly adjusted by the water company inspectors when they were making some of their frequent readings. The water company contends that the new meter at all times registered correctly. To sustain this position it relies upon the three or four inspections it caused to be made of the meter during the two or three months in question, and, also, the fact that as soon as the warehouse company renewed the valves in the elevator the registered water consumption was satisfactory to both parties. The water company argues that the repair of the elevator valves and the normal registration afterwards...